1. Probate challenge to a deceased's Will alleging lack of testamentary capacity, suspicious execution, fraud, and coercion by the propounder. (Para 9000177990001 , 9000177990002 )
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High Court Of Calcutta
Before: Kalyan Jyoti Sengupta And Sanjib Banerjee, JJ.
KRISHNA BERA - Appellant
Versus
PRABIR PRAMANIK - Respondent
F. A. 411 Of 2003
Decided On : 02/01/2007
The appeal is allowed and the Judgment passed by the learned Court below is set aside. The probator has failed to prove the case with cogent evidence. The propounder has failed to prove that the testator was in a position, both mentally and physically, to execute and register the will and further that the Will has been prepared and registered in such a manner which does not admit of any suspicion or doubt.
Fact of the Case:
The testator, one Binoy Krishna Pramanik, since deceased, before his death that took place on 12th November, 1988, is said to have executed his last Will and testament dated 13th July, 1988 and the same was registered on the same date. The applicant viz. the first respondent Prabir Pramanik was appointed as executor along with his mother Smt. Kamala Pramanik. It is alleged that because of inaction on the part of Kamala Pramanik, Prabir Pramanik applied for grant. It appears from the affidavit-of-assets that the testator has left a considerable properties which consists of house building and landed property.
Finding of the Court:
The learned Trial Judge, in our view, has not done justice having not read the evidence adduced by the caveatrix. He has merely picked up little and insignificant contradiction and left relevant portion of her oral evidence. A document was exhibited to show that byapsy test was carried out and from this document it was shown that cancer had developed.
Issues: 1. Is the suit maintainable in its present form and law? 2. Was Benoy Krishna Pramanik physically fit and mentally alert at the time of execution of the Will? Was the Will done voluntarily by the deceased? 3. Was the Will legal and valid? 4. In the aforesaid factual context and pleadings the learned counsel for the appellant, Mr. Gopal Chandra Ghosh, submits that the alleged Will was not the document of Binoy Krishna Pramanik and he had no testamentary capacity at all. This Will was got to be manufactured in collusion with all the attesting witnesses, and shyamal Mukherjee, being P. W. 2, happens to be a friend and Advocate of the propounder. Surprisingly the application for probate was made after 7 or 8 years from the date of death of the said deceased.
Ratio Decidendi: The propounder has failed to prove the case with cogent evidence. The propounder has failed to prove that the testator was in a position, both mentally and physically, to execute and register the will and further that the Will has been prepared and registered in such a manner which does not admit of any suspicion or doubt.
Final Decision: HENCE, this appeal is allowed and the Judgment passed by the learned Court below is set aside.
1. Probate challenge to a deceased's Will alleging lack of testamentary capacity, suspicious execution, fraud, and coercion by the propounder. (Para 9000177990001 , 9000177990002 )
2. Propounder argued Will was duly executed with testamentary capacity; contestants alleged fraud, coercion, and total incapacity of the testator. (Para 9000177990007 , 9000177990008 )
3. Appeal allowed; probate grant set aside; propounder failed to prove due execution and testamentary capacity. (Para 9000177990020 )
The propounder bears the burden of proving due execution, including the testator's sound disposing state of mind. When suspicious circumstances exist, the propounder must dispel them. (Para 9000177990009 , 9000177990074 , 9000177990075 , 9000177990076 , 9000177990099 , 9000177990101 , 9000177990104 )
Yes. Suspicious circumstances like fraud are not always capable of direct proof and may be inferred from the cumulative effect of circumstances pointing to something amiss. (Para 9000177990010 , 9000177990018 , 9000177990097 , 9000177990098 , 9000177990105 )
An appellate court may re-appreciate evidence when the trial court's appreciation is apparently absurd, contains serious contradictions, or when material evidence is overlooked. (Para 9000177990012 , 9000177990107 )
Yes. When the testator's mental and physical capacity is seriously questioned, the propounder's failure to call attending doctors as witnesses raises suspicious circumstances that must be dispelled. (Para 9000177990011 , 9000177990094 , 9000177990096 )
Yes. A subsequent document executed by the testator can throw light on their testamentary capacity at the time of making the Will, especially when capacity is seriously disputed. (Para 9000177990005 , 9000177990023 , 9000177990028 )
( 1 ) BY this appeal the appellants above-named before us have impugned the Judgment and order passed by the learned additional District Judge, 3rd Court at Barasat in O. S. No. 12 of 1995 whereby and whereunder the probate to the last Will and testament of late Binoy Krishna Pramanik has been granted. The short fact of the case which has given rise to this probate proceedings is stated hereunder.
( 2 ) THE testator, one Binoy Krishna Pramanik, since deceased, before his death that took place on 12th November, 1988, is said to have executed his last Will and testament dated 13th July, 1988 and the same was registered on the same date. The applicant viz. the first respondent Prabir Pramanik was appointed as executor along with his mother Smt. Kamala Pramanik. It is alleged that because of inaction on the part of Kamala Pramanik, Prabir Pramanik applied for grant. It appears from the affidavit-of-assets that the testator has left a considerable properties which consists of house building and landed property. It is stated that the said Will was duly lawfully executed and attested and thereafter registered by the testator out of his own volition. Written statement was filed by one Smt. Prakriti Chatterjee, appellant No. 3 herein and the same was preceded by lodging caveat. In the written statement validity and legality of the attestation, execution and registration of the same was challenged. It is alleged further that the said Will in question is a product of fraudulent, collusive act and the same was manufactured and procured upon coercion and threat. In substance, the Will is not a genuine document. According to them at that point of time the said testator was critically ill and his mind and body were not in functioning position to execute any document. It has also been alleged that the said testator was a patient of chronic diabetes and used to suffer from a trouble of prostrate gland for a long time rendering him unfit completely before his death. As a matter of fact, Binoy Krishna Pramanik lost his power of vision, and hearing nor he could speak in communicable way. In other words, he failed to understand and interpret. Even assuming that the Will is otherwise executed properly the same is absolutely unnatural as far as disposition is concerned. Specific allegations have been made that the said Will was procured by the executor who is beneficiary under the Will.
( 3 ) ON the aforesaid factual context the learned Trial Judge framed following issues:
1. Is the suit maintainable in its present form and law? 2. Was Benoy Krishna Pramanik physically fit and mentally alert at the time of execution of the Will? Was the Will done voluntarily by the deceased? 3. Was the Will legal and valid?
( 4 ) IS the plaintiff entitled to get a Probate as prayed for?
( 5 ) WHAT relief, if any, is the plaintiff entitled to?
4. In order to prove the Will the applicant propounder examined himself first and then one Sri Shyamal Mukherjee, a practising 8advocate was examined who described himself to be the attesting witness. One Nemai Maity was examined as a witness. Another attesting witness, one Sri Lal Mohan Pramanick also testified as a witness regarding preparation and execution of the said Will. The contesting defendant, apart from examining herself to resist this application for grant, brought one Smt. Gita Rani Jana and one Dr. Siba prasad Ghosh as witnesses to prove her case. Analyzing evidence of both the parties and after having examined the case as a whole the learned Trial Judge found that the defence put by the appellant No. 3 and the contesting defendant was not acceptable. He found that the will was duly and validly executed by the said testator and the same was genuine. He had testamentary capacity and the registration was done validly. 5. In course of hearing of this appeal it was submitted though it was not divulged before the learned Court below that few days after execution and registration of the said testame
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